Category Archives: Free Speech

Public Rights vs. Private Contracts

The Washington Post typically devotes the back pages of its Sunday Outlook section to short articles written by local community activists and others expressing their opinion about various issues of interest to the Metro DC area. This morning, one of those articles, titled My Rights Aren’t A Matter Of Address regarding the alleged threa to individual rights posed by Homeowners Associations or, as the author refers to them Property Owner Associations.

Virginians are proud of the commonwealth’s role in the founding of the country and the formation of the ideals and rights that define us as Americans.

From George Mason’s Virginia Declaration of Rights, to Thomas Jefferson’s Statute for Religious Freedom to James Madison’s role as the father of the Constitution, Virginians have been at the forefront of declaring and protecting individual rights.

Increasingly, however, these rights are being undermined or stripped by a form of government that the Founders did not foresee: the property owners association (POA).

The Constitution and Virginia law specifically recognize and protect the display of political yard signs on a homeowner’s property, yet a POA can and often does strip people of this right to free speech.

There is one problem with the entire premise of this argument. The Constitutions of the United States and Virginia to protect an individual rights to freedom of speech, but they only protect it against the action of the state. There is no such thing as a right to free speech that applies to private entities. If you are on my property, I have the right to stop you from engaging in speech that would otherwise be protected if you were on your property and I were a police officer. And this is where POA’s come in.

POA’s are entirely a creation of contract. Groups of homeowners come together and form an organization that will accomplish certain goals. Typically, this includes maintaining some standard rules of esthetics for the community, contracting for trash removal, and maintaining property that is owned by the POA members in common rather than by any one person.

When you buy a house that is part of a POA, you agree to certain rules and regulations. These rules can be as mundane as what day you put your trash can out or what color you can paint or front door. Or, they can be as rigid as telling you that you cannot put a sign of any kind in your front yard. In fact, if your front yard is actually POA property, which is true of many townhouse communities here in Northern Virginia, then the property really isn’t yours anyway.

Its evidently clear that the author of the article does not recognize this simple fact:

During holiday seasons, homeowners in my development are encouraged to decorate their homes with, say, Halloween scenes or Christmas decorations. Shouldn’t Election Day be treated as an important holiday for democracy? In my community, putting the issue to a vote has been suggested, but I disagree with this approach. What the Constitution gives, neither my POA nor my neighbors should be able to take away. Moving into a POA-ruled neighborhood should not mean moving out of America.

Property owners associations in Virginia have the legal right to prohibit homeowners from displaying political signs in their own yards. Homeowners are bound by the contracts they must sign to live in POA-regulated neighborhoods, and they agree to sacrifice some rights at the gates to the community. But it should not be within the reach of a POA to establish covenants that deny homeowners a constitutional right. Limitations on the size, number and duration of sign displays might be reasonable, but prohibition is not.

If you don’t like the rules that a particular POA has then you have several options. For one thing, you don’t have to move there to begin with. In Virginia, sellers are legally required to give buyers a copy of the POA rules and buyers are given an opportunity to review those rules and back out of the contract without penalty. If you’re in a POA and you don’t like the rules, or how they are being enforced then get involved in your community and get the rules changed. What you don’t need to do, though, is what the author of the article advocates:

To stop free-speech infringements by POAs, the Virginia General Assembly should follow the example of these states. Legislation has been introduced in both the House and Senate in Richmond, and a bill should be passed and signed into law. The efforts of our neighborhood’s founding developers to create attractive, homogeneous enclaves should not trump the efforts of the Founders to declare and protect the rights we enjoy as Virginians and as Americans.

Ah yes, if you don’t like the way the world is, just get the government involved and force everyone else to change. Unfortunately, that seems to be becoming the American way.

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More On Regulating Anonymous Internet Speech

I wrote yesterday , as did Chris in a post here, about a provision attached to the Violence Against Women Act which appears to outlaw anonymous “annoying” speech on the Internet. Not surprisingly, it has been the subject of much discussion today, and a little bit of second-guessing.

At The Volokh Conspiracy, Orin Kerr takes a skeptical look at the alleged threat to online liberty and comes away unimpressed. First, Kerr says, the existing law isn’t as bad as it sounds:

It turns out that the statute can only be used when prohibiting the speech would not violate the First Amendment. If speech is protected by the First Amendment, the statute is unconstitutional as applied and the indictment must be dismissed. An example of this is United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999). In Popa, the defendant called the U.S. Attorney for D.C on the telephone several times, and each time would hurl insults at the U.S. Attorney without identifying himself. He was charged under 47 U.S.C. 223(a)(1)(C), and raised a First Amendment defense. Writing for a unanimous panel, Judge Ginsburg reversed the conviction: punishing the speech violated the Supreme Court’s First Amendment test in United States v. O’Brien, 391 U.S. 367 (1968), he reasoned, such that the statute was unconstitutional as applied to those facts.

Under cases like Popa, 47 U.S.C. 223(a)(1)(C) is broad on its face but narrow in practice. That is, the text looks really broad, but prosecutors know that they can’t bring a prosecution unless doing so would comply with the Supreme Court’s First Amendment cases.

Okay, that sounds somewhat reassuring, but what about the new portion of the law ?

The new law simply expands the old law so that it applies to the Internet as well as the telephone network. It does this by taking the old definition of “telecommunications device” from 47 U.S.C. 223(h), which used to be telephone-specific, and expanding it in this context to include “any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet.”

Kerr also points to this article which asserts that the new provisions of the law are about applying the existing law to Voice Over IP (VOIP) technology, nothing more and nothing less. Therefore, Kerr believes that much of the reaction to the new legislation is, in fact, over-reaction.

At the same time, however, Kerr’s fellow conpsirator Eugene Volokh isn’t quite as sanguine about the situation.

[O]n balance I think the extension of the telephone harassment statute to the Web is a mistake. The statute already has problems, and the extension risks substantially exacerbating those problems, by potentially covering one-to-many annoying Web speech as well as the somewhat less valuable one-to-one annoying telephone calls.

Who’s right ? I’m not sure, but I tend to fall into Eugene’s camp on this one. And I personally wonder why harrassment over the telephone needs to be the subject of a federal law to begin with.

Originally posted at Below The Beltway

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Annoy, Abuse, Threaten or Harass

“Whoever…utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet… without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person…who receives the communications…shall be fined under title 18 or imprisoned not more than two years, or both.”

My god, how will usenet or blogs function when everyone is in prison?

Yes folks, congress has tried to make being anonymously annoying on the internet illegal.

In particular, Arlen Specter (who seems to truly hate the internet and electronic world in general given other bullshit he has sponsored before) re-wrote the language and included it in the “Violence Against Women and Department of Justice Reauthorization Act of 2005”, a must pass bill that provided funding for the justice department to continue operating.

Specter is also one of the senators (along with Fritz Hollings) who keeps trying to insert broadcast flag, and other DRM or copyright legislation into unrelated bills etc…; thus my saying he must really hate the internet.

The gist of it is simple. They took an existing anti-telephone harassment law, and re-wrote it to cover the internet directly, without changing the wording

Except there’s a problem with that, the internet and the telephone, while both networks; are entirely different in nature; and are not, and can not be subject to the same type of rules, regulations, or management paradigms.

Oh, and this is a problem in conception that business people have had for almost three decades now, so it’s only fitting that lawmakers will catch up.

The telephone is a unicast medium. It involves a point to point communication that must be acknowledged or significant damage to ones life or business will result. The internet is a broadcast medium (with regards to communication of ideas or speach anyway).

Effectively the internet AS A WHOLE is a public space (with private spaces connected to it, and a huge number of idiots who don’t seem to understand the difference); and annoying speach in public is generally allowed, so long as that speach is not disturgbing the peace.

Well, how is something disturbing the public peace if you have to open a door and walk into a room to hear it? No matter how load and annoying it is, the sound cant leave the room you have deliberately entered of your own choice.

Not only that, but ones own sites, whether they are publicly accessible or not, ARE EFFECTIVELY PRIVATE SPACES, and annoying speach is ALWAYS allowed in your private spaces; unless that annoyance becomes harrassment.

The fact is, you jsut can’t make annoying speach a crime. If I were forcing you to listen to it; yeah that’d be a crime; but just posting annoying speach, or even sending annoying emails (though that is a much grayer area, especialy as regards inboxes and other explicit infospaces, expectation of privacy, and ownership of virtual spaces, but that’s another discussion entirely) can never be a crime.

The good news is, there is no way this provision will stand. Case law is already against it, and the ACLU will do one of it’s rare good deeds and make sure this gets challenged and struck down right away.

The congresscritters just better hope they made the damn thing severable or the supremes will have to invalidate the entire bill.

Cross posted from The AnarchAngel

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

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